NOT FOR PUBLICATION                           FILED
                   UNITED STATES COURT OF APPEALS                        OCT 26 2020
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DARRELL HUNTER,                                No.    18-17335

               Petitioner-Appellant,           D.C. No. 3:18-cv-02627-CRB

 v.
                                               MEMORANDUM*
SCOTT KERNAN, Director, California
Department of Corrections; XAVIER
BECERRA, Attorney General of the State of
California,

               Respondents-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Charles R. Breyer, District Judge, Presiding

                          Submitted October 21, 2020**
                            San Francisco, California

Before: HAWKINS, N.R. SMITH, and R. NELSON, Circuit Judges.

      Darrell Hunter appeals from the district court’s denial of his 28 U.S.C. § 2254

petition challenging his conviction in California state court for making a criminal



      *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
threat against his former girlfriend’s manager.        We granted a certificate of

appealability with respect to three issues. We have jurisdiction under 28 U.S.C. §

2253, and reviewing de novo, we affirm. See Lopez v. Thompson, 

,

1116 (9th Cir. 2000) (en banc).

      1. The state court reasonably determined that Hunter was not denied due

process when the trial court failed to suspend his trial and order a competency

evaluation after his outburst in court. A sua sponte competency hearing is required

when the evidence before the trial court raises a “bona fide doubt” as to a defendant’s

competency to stand trial. Maxwell v. Roe, 

, 568 (9th Cir. 2010)

(quoting Pate v. Robinson, 

, 385 (1966)).

      It is certainly true that Hunter’s out-of-court behavior was unusual, and his

composure vacillated at times during in-court proceedings. But as the state court

described, this evidence of “extreme emotion and anger,” “agitation,” and “perhaps

a lack of impulse control” was not substantial enough to suggest that Hunter was

unable to understand the proceedings and participate in his own defense. Instead,

the trial court’s interactions with and observations of Hunter during the proceedings

left it with no doubt that he was competent. Not only does Hunter rely almost

exclusively on circuit precedent—which “does not constitute ‘clearly established

Federal law, as determined by the Supreme Court’” and therefore “cannot form the

basis for habeas relief under AEDPA,” Parker v. Matthews, 

, 48–49


                                          2
(2012)—in arguing that the state court erred, but the cases he cites involve far more

extreme evidence. Thus, we cannot conclude that the state court’s denial of Hunter’s

claim “resulted in a decision that was contrary to . . . clearly established Federal law,

as determined by the Supreme Court of the United States” or was otherwise “based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceedings.” 28 U.S.C. § 2254(d)(1), (2). Furthermore, we cannot

consider Hunter’s medical history and diagnoses because that evidence was not

before the trial court. See McMurtrey v. Ryan, 

, 1119 (9th Cir. 2008).

      2. The state court reasonably determined that the trial court’s failure to grant

Hunter a new trial was not a violation of due process. Two post-trial competency

reports were the only new evidence before the court. Not only did those reports

reach contrary conclusions, but they also addressed Hunter’s competence at the time

of the doctors’ evaluations rather than at the time of the already-concluded trial.

These were reasonable bases on which to reject this claim.

      3.   Finally, defense counsel’s failure to declare a doubt as to Hunter’s

competence or to investigate and present a diminished actuality defense did not make

his performance constitutionally deficient. Our review of a Strickland claim under

§ 2254(d) is “doubly deferential.” Cullen v. Pinholster, 

, 190 (2011)

(quoting Knowles v. Mirzayance, 

, 123 (2009)); see also Strickland v.

Washington, 

, 689 (1984).


                                           3
       Hunter argues that his lawyer should have requested a competency evaluation

based on the same evidence that he says should have led the trial court to order one.

For the same reasons that a mid-trial evaluation was not constitutionally required,

an expression of doubt from counsel was not constitutionally required. Further, as

the state court noted, counsel’s doubt would not have changed the outcome in light

of the trial court’s considered view of Hunter’s engagement in the proceedings and

ability to assist in his defense.

       Neither was defense counsel constitutionally required to use Hunter’s bipolar

disorder diagnosis to argue that he did not have the specific intent required to convict

him. The state court’s rejection of this claim rested on at least three reasonable

grounds. First, assuming that counsel was aware of the evaluation Hunter relies on,

the report addressed his competence to stand trial, not his mental state at the time of

the offense. Second, evidence about Hunter’s general capacity to form specific

intent would not have been admissible. Third, in light of Hunter’s fixation on the

victim and earlier threat against her, reasonable counsel could have concluded that

this defense was not viable. Counsel’s decision was “reasonable considering all the

circumstances.”     See 

.       Finally, even if counsel’s

performance could be considered deficient, Hunter has failed to show prejudice.

       AFFIRMED.




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